California debates bill to punish “revenge porn”

The California Legislature is debating a bill this week that would make it a misdemeanor to publish nude pictures online when the intent is to cause emotional distress.

The proposal covers images that were taken with consent but posted publicly without permission. It’s a complex distinction that is dividing proponents of free speech rights, on the one hand, and advocates of privacy rights and victims, on the other.

A variety of sites have emerged for the explicit purpose of featuring what’s sometimes called “revenge porn.” But the proposal targets the uploader not the host, in keeping with federal laws that inoculate sites from the actions of their users.

The bill would:

… provide that any person who photographs or records by any means the image of another, identifiable person without with his or her consent who is in a state of full or partial undress in any area in which the person being photographed or recorded has a reasonable expectation of privacy, and subsequently distributes the image taken, with the intent to cause serious emotional distress, and the other person suffers serious emotional distress would constitute disorderly conduct subject to that same punishment.

It could be punishable by up to a year in prison, if the victim is a minor or the individual commits more than one offense.

It’s unclear how one’s intent in uploading such material would be established.

The American Civil Liberties Union previously came out against the measure, which already passed in the California Senate. There are worries that the law could be used to squelch otherwise protected speech, including protest art.

“We opposed the bill as it was originally introduced on free speech grounds,” ACLU Legislative Director Francisco Lobaco said. “We are reviewing the amended bill and haven’t weighed in on it yet.”

I’m unclear exactly how much ground the new law would cover that isn’t already covered by existing laws, such as anti-harassment/anti-stalking laws. As usual, one of the key questions is how existing law has failed and what behavior is being newly criminalized.

But Erica Johnstone of the organization Without My Consent noted in an interview: “The problem is those (existing laws) are not being enforced. More often than not, victims file reports and are told nothing can be done.”

Police often don’t realize existing statues could cover such acts or aren’t trained to apply those legal tools to digital crimes, she said.

Johnstone said the main flaw she sees with the California bill as written is that it doesn’t reflect the fact that the content used in revenge porn is often created by the victim him or herself.

“A lot of times the parties are in a long-distance relationship and this is the way of establishing intimacy over long distance,” she said.

Other proponents of victims point out that strongly discouraging the act in the first place is critical, because one such material is posted, it can quickly spread across the Internet, making its total removal near impossible. The threat of uploading intimate pictures and videos, or promise of removing them, is sometimes used to blackmail victims for sex or money.

It costs at least $10,000 in legal fees to issue a subpoena to an online company demanding the IP address that links a real person to an uploaded file, said Colette Vogele, co-founder of Without My Consent, in an earlier interview.

Depending on the facts of the case and the state involved, the victim might be able to sue the person for defamation, publication of private facts, breach of confidence and other claims. Some acts can rise to the level of criminal offenses, including stalking and extortion. But it costs thousands of additional dollars to file a lawsuit.

Revenge porn is just one form of online harassment. I explored the broader topic in an earlier story that noted how widespread it’s become:

University of Maryland law Professor Danielle Citron noted in a recent blog post that the Bureau of Justice Statistics estimated that “850,000 people in 2006 experienced stalking with a significant online component,” while other researchers predict that 30 percent of Internet users will “face some form of cyber harassment in their lives.”

It can take many forms, including hate speech, threats of rape and sexual violence, and posting of nude or doctored images. …

The results can be traumatic and tragic, as exemplified by the case of Tyler Clementi. In 2010, the 18-year-old Rutgers student killed himself after his roommate hid a webcam in their room and streamed video online of his sexual encounter with another man.